4.  The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.
5.   By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.
6.  The first applicant consented to having L. placed in a foster family.
7.  On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.
8.  The first applicant was unrepresented in those proceedings.
9.  On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.
The relevant part of the decision reads:
“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.
At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...
The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.
The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.
The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...
... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.
In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.
...”
This decision was served on the first applicant on 17 May 2010.
10.  After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.
11.  On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.
12.  She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.
13.  Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.
14.  On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.
15.  On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.
16.  On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted.
17.  The Family Act (Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:
Section 114
“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.
(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she: 1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family; 9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing; 10. has abused the rights of a child in another manner.
(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.
(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.
(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.
(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.
...”
Section 119
“(1) Once adoption has been established parental custody [of the adopted child] shall cease.
...”
Section 125
“(1) Adoption may be established if it is in the interest of the child.
...”
Section 129
“(1) Adoption shall require the consent of both parents, except where otherwise provided.
...”
Section 130
“Adoption shall not require the consent of a parent who is ... 1. divested of parental rights
...”
Section 135
“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”
Section 138
...
“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”
Section 139
“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”
Section 144
“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.
...”
Section 267
“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”
18.  The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).
19.  The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.
20.  In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.
21.  In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.
22.  In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.
23.  In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.
24.  In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.
25.  In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.
26.  In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.
27.  Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.
28.  In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.
29.  In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.
30.  In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.
31.  In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.
32.  In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.
33.  In most of these member States the right to participate is expressly ruled out.  In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.
34.  The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:
Article 9
“1.  States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
“2.  In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”
Article 21
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”
35.  On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:
Principle 15:
“1.  An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:
­ the consent of the mother
­ the consent of the father.
States may also require the consent of the child considered by the internal law as having sufficient understanding. 2.  The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3.  The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”
36.  The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:
Article 5 – Consents to an adoption
“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:
a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;
b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;
c the consent of the spouse or registered partner of the adopter.
2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.
3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.
4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.
5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.
6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”